Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.

NSW workers compensation and when is an employee a firefighter? or a paramedic?

This question is important because back in June 2012 the NSW Workers Compensation laws were changed to make it harder to qualify for compensation. Police officers, firefighters and paramedics were exempt from the changed rules (see ‘Fire fighters and paramedics exempted from workers compensation changes’ (June 22, 2012). It is important, therefore, for all parties to know whether an employee is a firefighter or paramedic as that makes a significant difference to their compensation rights. On 29 November 2012 the NSW Industrial Relations Commission gave a ruling in the context of an industrial dispute (see ‘Who is a firefighter in NSW?’ (November 30, 2012)).

Mr Ware was employed by the RFS as a mechanic. Mostly he worked in the RFS workshops but on occasion he would have to be at the fire front to maintain the firefighting appliances: ‘When he attended the fire front, he was often as close to the fires as “the people holding the fire hoses”. Since 2001, he attended the fire front, to carry out emergency repairs on fire-fighting equipment, on about 31 occasions” [7]. As a result of his work he suffered industrial deafness. With the 2012 amendments he would no longer be eligible for compensation as he did not meet a statutory threshold of a whole of person impairment of 10%. If he was a firefighter, that threshold did not apply.

The Deputy President found that Mr Ware was not a firefighter. He said (at [42]-[46], [58]):

I have concluded that the legal meaning of firefighter corresponds with its normal grammatical (dictionary) meaning and there is nothing in the context, purpose or policy … that leads to a different conclusion. It follows that firefighter means “someone whose activity or employment is to extinguish fires, especially bushfires”. As Mr Ware was employed as a mechanic, not a firefighter, he is only a firefighter … when he is engaged in providing support at the fire front during a fire.

The interpretation urged by Mr McManamey extends the meaning of firefighter from “someone whose activity or employment is to extinguish fires” to include someone “involved in the task of extinguishing fires”, however remote and indirect that involvement may be. Such an interpretation would result in the respondent’s receptionist being a firefighter. That is an artificial extension of the meaning of firefighter that is not justified by the words used, or by the context in which they appear [in cl 25 of Pt 19H of Sch 6 to the Workers Compensation Act 1987].

The argument that cl 25 directs attention to the type of employment, not the individual duties being carried out at the time of injury, does not assist Mr Ware. Mr Ware’s “type of employment” was that of a mechanic: he maintained and repaired equipment for use in fighting fires. Though it may be accepted that the maintenance of that equipment is necessary for the efficient operation of the respondent’s activities, that does not change the essential character or “type” of Mr Ware’s employment. He was and is a mechanic and, plainly, not a firefighter.

The argument that police officers are exempt, regardless of the activity in which they are engaged, does not advance Mr Ware’s position. The term police officer is defined in s 3 of the Police Act 1990 to mean “a member of the NSW Police Force holding a position which is designated under this Act as a position to be held by a police officer”. It follows that a person who meets that definition is exempt from the amendments, regardless of the activity in which he or she is engaged at the time of injury… There is no similar definition of a firefighter… there is no support for the argument that a person employed as a mechanic should, while working as a mechanic in a workshop, be considered a firefighter.

The Deputy President did agree that Mr Ware would be considered a firefighter ‘when he was repairing equipment at the fire front, which was an integral part of the job of extinguishing fires. If, at those times, workers such as Mr Ware were injured they would be exempt from the amendments and entitled to compensation according to the terms of the applicable legislation’ [64]. With industrial deafness however, it was not a specific injury that could be attributed to the work on the fire ground nor did the Act allow for there to be a finding as to what part was caused when firefighting ad what part was caused in the workshops.

Conclusion

Even though employed as a mechanic, when working on the fire ground ‘an integral part of the job of extinguishing fires’ Mr Ware would be considered a firefighter. That would affect his compensation rights if injured on that fire ground but did not assist in this case because of the nature of industrial deafness. The fact that he was employed by a fire service and would, on occasions, undertake firefighting duties did not change the substantive nature of his employment from ‘mechanic’ to ‘firefighter’.

Paramedic – State of New South Wales v Stockwell [2015] NSWWCCPD 9

Mr Stockwell was employed as a paramedic when he joined NSW Ambulance in 1996. In 2000 he received a ‘Diploma Paramedic Science (Pre-hospital Care)’ [sic]. By the start of 2001 Mr Stockwell’s employment changed and he moved into the Northern New South Wales Operations Centre at Newcastle. Deputy President Roche summed up relevant facts at [7]-[8]:

Mr Stockwell’s primary role as an operations centre officer was to co-ordinate emergency and routine response for ambulance officers and patient transport officers in a given geographic area. He gave evidence that, relying on his skills and knowledge as a paramedic, he gave medical advice to emergency service workers and members of the public.

As a result of his work as an operations centre officer, Mr Stockwell suffered a psychological injury, with a deemed date of injury of 31 January 2007, which was (presumably) the date of his incapacity and the date on which he stopped working. Mr Stockwell ceased employment with the appellant on 10 August 2007.

On 14 November 2012 the workers compensation insurer (and note that it was the insurer, not the Ambulance Service) advised Mr Stockwell that as he was not a paramedic at the time of his injuries, his future entitlement to compensation would be determined by the ‘new’ (2012) rule. So the question for the Commission was ‘At the time of his injury, 2007, was Mr Stockwell still a ‘paramedic’?’ The insurer argued that ‘As Mr Stockwell was not “rostered on-road and not performing ‘in the field’ emergency/casualty response duties”, he was not “an operational paramedic”.’ [25]

The matter was originally heard by an arbitrator who determined that ‘Mr Stockwell was a paramedic employed by the appellant and that he was doing the work of a paramedic, which included giving advice in emergency situations to injured members of the public, emergency services personnel and others. [The arbitrator] did not consider it necessary that, to be a paramedic, Mr Stockwell be at the scene of an emergency’ [29]. The insurer appealed.

The arbitrator had found that ‘[Mr Stockwell’s] employment required him to be a qualified paramedic”’ [87]. Deputy President Roche held that this was not what the evidence showed. The Award only required that a person in this position ‘holds a first aid certificate, with re-certification every three years for non-uniformed employees’. Mr Stockwell did maintain his paramedic qualifications but it was not necessary for him to do so as part of his work. As the Deputy President said (at [88]):

Mr Stockwell’s evidence does not establish that the terms of his employment required him to be a qualified paramedic, at least while he worked in the operations centre. His evidence was merely to the effect that, to renew his “paramedical qualifications”, he was required to do a re-certification “as a paramedic every two to three years”. This evidence was merely that Mr Stockwell did in fact maintain his qualifications. It did not justify a conclusion that it was a term of Mr Stockwell’s employment, at the operations centre, that he be a qualified paramedic. This conclusion is reached independently of the evidence in the Position Description, but is consistent with it.

Mr Stockwell argued that he ‘was classified as an “ambulance officer operations centre grade 2 (with intensive care paramedic qualifications)”, and was therefore a paramedic’. He relied on his payslips to support that claim. Mr Stockwell had been employed as an Ambulance Officer Grade 2 and had that been his classification at the time of his injury ‘there seems little doubt that he would have been entitled to be described as a paramedic and would be exempt from the consequences of the amendments introduced by the 2012 amending Act. This would follow regardless of the duties he actually performed’ [93]. The problem was that job classifications had changed. There were two classifications “Ambulance Operations Centre – Non Paramedic” and “Ambulance Operations Centre Paramedic”. The evidence provided did not describe Mr Stockwelll in either of those terms. The arbitrator had said that Mr Stockwell was ‘clearly a paramedic employed by the [appellant], that being the description on his pay slips’. The Deputy President found that this was an error. The error was not finding that he was employed as a paramedic, but it was an error to say that this was the description on his payslip.

The arbitrator found that Mr Stockwell’s duties of giving ‘… advice, in emergency situations, to members of the public, emergency services personnel and others’. He said (at [32]) that the fact that Mr Stockwell was not physically present at the scene was immaterial and it was:

“readily apparent that [the] procedure would have been that [Mr Stockwell] would have been advised of the victim’s condition, injuries and vital signs, and that he would have given advice as to the appropriate treatment, directed [the] person to whom he was talking as to how to actually administer the treatment and how to evaluate its effectiveness. All of this was done in real time. It involved coordinating the appropriate diagnosis and treatment of critically injured people, and [Mr Stockwell] was an integral and most important part of this process.”

The Arbitrator added (at [33]) that Mr Stockwell’s “employment as a paramedic is congruent with the context and wording of clause 25 and [Mr Stockwell’s] substantive position was that of a paramedic”. ([99]-[100]).

It should be noted that the issue was not whether Mr Stockwell was performing paramedic type duties, but whether he was employed as a paramedic. The Deputy President looked at the relevant award that did contain a definition of ‘paramedic’ and said (at 125):

It follows that a paramedic who meets the definition of a paramedic in the Ambulance Officers’ Award, and who works in the operations centre, is a paramedic … regardless of the nature of the duties he or she performs. The question of whether Mr Stockwell gave clinical advice, as a paramedic, or merely directed ambulances to specific places does not arise. The issue is whether Mr Stockwell was, at the time of his injury, employed as a paramedic.

If the definition of paramedic in the award was not the relevant definition, then according to Deputy President Roche, the normal meaning of the word applied. He said (at [132]-[134]):

The Macquarie Dictionary defines a paramedic as “a person who provides specialist primary care to the injured or sick” and “a person who performs paramedical services”. Paramedical is defined to mean “of or relating to healthcare workers other than doctors, dentists, nurses, etc., who have special training in the performance of supportive health treatments”.

A worker can provide specialist primary care to the injured or sick without having to be “in the field” or directly “hands on”. Provided they are qualified to give such advice, a person who provides the advice over the phone is just as much a paramedic as the person at the scene of the particular incident where the care is being provided.

Therefore, if Mr Stockwell gave the kind of advice that he gave evidence of at the arbitration, and if it is found that, at the time of his injury, he was qualified to give that advice, that is, if he had a “clinical certificate to practice” as a paramedic, he is a paramedic..

The problem in the Operations Centre was that the award anticipates that there are both paramedics and non-paramedics working together. The insurer had argued that it didn’t matter if a person was qualified as a paramedic before they commenced in the operations centre, once there it was not a paramedic job because, if it was ‘… it would be unnatural and unrealistic for two workers working side-by-side in the same role, to have different entitlements depending on their qualifications “prior” to their employment’ [126].

According to the Deputy President this argument ‘… ignored the Ambulance Officers’ Award, which defines “paramedic” and makes express provision for a paramedic to work in the operations centre and to be paid an additional allowance while doing so’ [126]. Thus, the Ambulance Officers’ Award expressly acknowledges that two workers, with different qualifications, working side-by-side in the same role, will receive different remuneration. It is consistent and appropriate that such workers also come under different workers’ compensation regimes.

Outcome

The appeal was successful because the arbitrator had made errors. The arbitrator had determined that Paramedic qualifications were an essential requirement of Mr Stockwell’s employment in the coordination centre and that his payslips showed he had been employed as a ‘paramedic’. The Deputy President said those findings were not supported by the evidence so the matter had to be re-determined.

The Deputy President did not say that Mr Stockwell was not a paramedic, only that the arbitrator had misunderstood the evidence. The essential question for the Deputy President was ‘Was Mr Stockwell employed as a paramedic?” If the answer to that question was ‘yes’ then it did not matter whether his injuries were sustained when performing traditional paramedic duties of providing health care to the sick and injured. If he was employed as a paramedic, as defined in the award or just in the dictionary, then the 2012 amendments do not apply to his claim.

Is this inconsistent with Ware?

This decision is not inconsistent with Ware, discussed above. If Mr Ware had been employed as a firefighter the 2012 amendments would not have applied to him, regardless of the duties he was performing at the time of his injury. As Deputy President Roche said [in Ware at [53]) ‘a member of the NSW Fire Brigade is a firefighter. Such a person would be a firefighter whether injured fighting a fire or in some other work situation away from a fire. However, Mr Ware is not such a person. Looking at his substantive position … he is plainly not a firefighter’.

In Mr Ware’s case he was not employed as a firefighter so the exemption from the 2012 amendments would only apply if he was actually engaged in firefighting that is maintaining the equipment on the fire ground as an essential contribution to the firefighting effort. If Mr Stockwell was employed as a paramedic then he was a paramedic and it would not matter whether he was injured when providing emergency medical care or some other duty. The critical issue in both cases was the substantive nature of the persons employment rather than the actual duties performed.

Would registration have helped?

The answer here is ‘no’. Mr Stockwell could have been a registered paramedic (if such a position existed) but that would not have answered the question of his current employment. A registered paramedic could be employed as a cleaner but their registration won’t change their compensation entitlements. If there was paramedic registration the issue would be resolved if being a registered paramedic was an essential requirement for the particular job.

This is another judicial decision on when is an employee a paramedic for the purposes of the workers compensation laws. In Chapman-Davis v State of New South Wales [2015] NSWIC 10 (4 March 2015) President Walton of the Industrial Court had to rule on an application by a paramedic who had been seconded to work as a Health Advisor with the Health Access Coordination Unit. ‘The duties of a Health Advisor primarily included the provision, via telephone, of health information and advice to low-acuity triple zero callers’ [99].

The applicant’s appointment as a health adviser was described as a ‘secondment’ for 12 months. She continued to be paid as a paramedic and retained her substantive position. The insurer argued that the 2012 amendments, that did not apply to paramedics, should be read as not applying to ‘operational paramedics’. The court rejected the argument that it should in effect, add the word ‘operational’ where the legislature had not.

Walton P said (at [222]): “The applicant, in her temporary position as a Health Advisor, fell within the field covered by the Schedule [and so was exempt from the restrictive 2012 amendments] whilstsoever she maintained her appointment and classification as a ‘paramedic’ in the employment of the first respondent within the service of the ASNSW. That the ASNSW chose to maintain that appointment whilst the applicant was under secondment for various administrative reasons does not undermine the efficacy of that conclusion.“ A paramedic means someone employed as a paramedic, regardless of the duties that they are undertaking at the time of their injury.